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EN BANC

[G.R. NO. 173473 : December 17, 2008]

PEOPLE OF THE PHILIPPINES, Appellee, v. BETH TEMPORADA,

Appellant.

DECISION

YNARES-SANTIAGO, J.:

Before us for review is the February 24, 2006 Decision1 of the Court
of Appeals (CA), affirming with modification the May 14, 2004
Decision2 of the Regional Trial Court (RTC) of Manila, Branch 33,
convicting accused-appellant Beth Temporada of the crime of large
scale illegal recruitment, or violation of Article 38 of the Labor Code,
as amended, and five (5) counts of estafa under Article 315, par. (2)
(a) of the Revised Penal Code (RPC).

The antecedents, as found by the appellate court, are as follows:

From September 2001 to January 2002, accused

Rosemarie "Baby" Robles, Bernadette Miranda, Nenita
Catacotan and Jojo Resco and appellant Beth Temporada,
all employees of the Alternative Travel and Tours
Corporation (ATTC), recruited and promised overseas
employment, for a fee, to complainants Rogelio Legaspi,
Jr. as technician in Singapore, and Soledad Atle, Luz
Minkay, Evelyn Estacio and Dennis Dimaano as factory
workers in Hongkong. The accused and appellant were
then holding office at Dela Rosa Street, Makati City but
eventually transferred business to Discovery Plaza,
Ermita, Manila. After complainants had submitted all the
requirements consisting of their respective application
forms, passports, NBI clearances and medical certificates,
the accused and appellant, on different dates, collected
and received from them placement fees in various
amounts, viz: a) from Rogelio Legaspi, Jr. - 57,600.00; b)
from Dennis Dimaano - P66,520.00; c) from Evelyn
Estacio - P88,520.00; d) from Soledad Atle - P69,520.00
and e) from Luz Minkay - P69,520.00. As none of them
was able to leave nor recover the amounts they had paid,
complainant lodged separate criminal complaints against
accused and appellant before the City Prosecutor of
Manila. On November 29, 2002, Assistant City Prosecutor
Restituto Mangalindan, Jr. filed six (6) Informations against
the accused and appellant, one for Illegal Recruitment in
Large Scale under Article 38 (a) of the Labor Code as
amended, and the rest for five (5) counts of estafa under
Article 315 paragraph 2 (a) of the Revised Penal Code.

The Information for large scale illegal recruitment reads:

Criminal Case No. 02-208371:

"The undersigned accuses ROSEMARIE

"BABY" ROBLES, BERNADETTE M.
MIRANDA, BETH TEMPORADA, NENITA
CATACOTAN and JOJO RESCO x x x.

That in or about and during the period

comprised between the months of September
2001 and January 2002, inclusive, in the City of
Manila, Philippines, the said accused,
representing themselves to have the power and
capacity to contract, enlist and transport
Filipino workers for employment abroad, did
then and there willfully, unlawfully for a fee,
recruit and promise employment to REGELIO
A. LEGASPI, JR., DENNIS T. DIMAANO,
EVELEYN V. ESTACIO, SOLEDAD B. ATTE
and LUZ MINKAY without first having secured
the required license from the Department of
Labor and Employment as required by law, and
charge or accept directly or indirectly from said
complainant[s] the amount of PH57,600.00,
PH66,520.00, PH88,520.00, PH69,520.00,
PH69,520.00, respectively, as placement fees
in consideration for their overseas employment,
which amounts are in excess of or greater than
that specified in the scheduled of allowable
fees prescribed of the POEA and without
reasons and without fault of the said
complainants, failed to actually deploy them
and failed to reimburse them the expenses
they incurred in connection with the
documentation and processing of their papers
for purposes of their deployment.

Contrary to law."

Except for the name of private complainant and the

amount involved, the five (5) Informations for estafa
contain substantially identical averments as follows:

Criminal Case No. 02-208372:

"The undersigned accuses ROSEMARIE

 "BABY" ROBLES, BERNADETTE M.
MIRANDA, BETH TEMPORADA, NENITA
CATACOTAN and JOJO RESCO x x x.

That in or about and during the period

comprised between November 23, 2001 and
January 12, 2002, inclusive, in the City of
Manila, Philippines, the said accused,
conspiring and confederating together and
helping one another, did then and there
willfully, unlawfully and feloniously defraud
ROGELIO A. LEGASPI, JR., in the following
manner, to wit: the said accused, by means of
false manifestations and fraudulent
representations which they made to said
ROGELIO A. LEGASPI, JR., prior to and even
simultaneous with the commission of the fraud,
to the effect that they have the power and
capacity to recruit and employ ROGELIO A.
LEGASPI, JR., as technician in Singapore and
could facilitate the processing of the pertinent
papers if given the necessary amount to meet
the requirements thereof, induced and
succeeded in inducing said ROGELIO A.
LEGASPI, JR., to give and deliver, as in fact he
gave and delivered to said accused the amount
of P57,600.00 on the strength of said
manifestations and representations said
accused well knowing that the same were false
and fraudulent and were made solely for the
purpose of obtaining, as in fact they did obtain
the amount of P57,600.00, which amount, once
in their possession, with intend to defraud, they
willfully, unlawfully and feloniously
misappropriated, misapplied and converted the
same to their own personal use and benefit, to
the damage and prejudice of said ROGELIO A.
LEGASPI, JR. in the aforesaid amount of
P57,000.00 Philippine Currency.

Contrary to law."

The other four (4) Informations for estafa involve the

following complainants and amounts:

1. DENNIS T. DIMAANO P66,520.00

2. EVELYN V. ESTACIO P88,520.00

3. SOLEDAD B. ATLE P69,520.00

4. LUZ T. MINKAY P69,520.003

Only appellant was apprehended and brought to trial, the other

accused remained at large. Upon arraignment, appellant pleaded not
guilty and trial on the merits ensued. After joint trial, on May 14, 2004,
the RTC rendered judgment convicting appellant of all the charges:

WHEREFORE, the prosecution having established the

GUILT of accused Beth Temporada BEYOND
REASONABLE DOUBT, judgment is hereby rendered
CONVICTING the said accused, as principal of the
offenses charged and she is sentenced to suffer the
penalty of LIFE IMPRISONMENT and a fine of Five
Hundred Thousand Pesos (P500,000.00) for illegal
recruitment; and the indeterminate penalty of four (4) years
and two (2) months of prision correctional as minimum, to
nine (9) years and one (1) day of prision mayor, as
 maximum for the estafa committed against complainant
Rogelio A. Legaspi, Jr.; the indeterminate penalty of four
(4) years and two (2) months of prision correctional as
minimum to ten (10) years and one day of prision mayor
as maximum each for the estafas committed against
complainants, Dennis Dimaano, Soledad B. Atte and Luz
T. Minkay; and the indeterminate penalty of four (4) years
and two (2) months of prision correctional as minimum, to
eleven (11) years and one (1) day of prision mayor as
maximum for the estafa committed against Evelyn Estacio.

The accused is also ordered to pay jointly and severally

the complainants actual damages as follows:

1. Rogelio A. Legaspi Jr. P57,600.00

2. Dennis T. Dimaano 66,520.00

3. Evelyn V. Estacio 88,520.00

4. Soledad B. Atte 66,520.00

5. Luz T. Minkay 69,520.00

SO ORDERED.4

In accordance with the Court's ruling inPeople v. Mateo,5 this case

was referred to the CA for intermediate review. On February 24, 2006,
the CA affirmed with modification the Decision of the RTC:

WHEREFORE, with MODIFICATION to the effect that in

Criminal Cases Nos. 02-208373, 02-208375, & 02-
208376, appellant is sentenced to suffer the indeterminate
penalty of six (6) years of prision correccional maximum,
as minimum, to ten (10) years and one (1) day of prision
mayor maximum, as maximum; and in Criminal Case No.
02-208374, she is sentenced to suffer the indeterminate
penalty of eight (8) years and one (1) day of prision mayor
medium, as minimum, to twelve (12) years and one (1) day
o f reclusion temporal minimum, as maximum, the
appealed decision is AFFIRMED in all other respects. 6

Before this Court, appellant ascribes the lone error that the trial court
gravely erred in finding her guilty of illegal recruitment and five (5)
counts of estafa despite the insufficiency of the evidence for the
prosecution.

We affirm the Decision of the CA, except as to the indeterminate

penalties imposed for the five (5) counts of estafa.

Article 13(b) of the Labor Code defines recruitment and placement

thusly:

ART. 13. Definitions. - x x x

(b) "Recruitment and placement" refers to any act of

canvassing, enlisting, contracting, transporting, utilizing,
hiring or procuring workers, and includes referrals, contract
services, promising or advertising for employment, locally
or abroad, whether for profit or not: Provided, That any
person or entity which, in any manner, offers or promises
for a fee, employment to two or more persons shall be
deemed engaged in recruitment and placement.

To constitute illegal recruitment in large scale, three (3) elements must

concur: (a) the offender has no valid license or authority required by
law to enable him to lawfully engage in recruitment and placement of
workers; (b) the offender undertakes any of the activities within the
meaning of "recruitment and placement" under Article 13(b) of the
Labor Code, or any of the prohibited practices enumerated under
Article 34 of the said Code (now Section 6 of R.A. No. 8042); and, (c)
the offender committed the same against three (3) or more persons,
individually or as a group.7

In the case at bar, the foregoing elements are present. Appellant, in

conspiracy with her co-accused, misrepresented to have the power,
influence, authority and business to obtain overseas employment
upon payment of a placement fee which was duly collected from
complainants Rogelio Legaspi, Dennis Dimaano, Evelyn Estacio,
Soledad Atle and Luz Minkay. Further, the certification 8 issued by the
Philippine Overseas Employment Administration (POEA) and the
testimony of Ann Abastra Abas, a representative of said government
agency, established that appellant and her co-accused did not
possess any authority or license to recruit workers for overseas
employment. And, since there were five (5) victims, the trial court
correctly found appellant liable for illegal recruitment in large scale.

Appellant insists that she was merely an employee of ATTC and was
just "echoing the requirement of her employer." She further argues
that the prosecution failed to prove that she was aware of the latter's
illegal activities and that she actively participated therein. In essence,
she controverts the factual findings of the lower courts.

The contention is untenable.

An employee of a company or corporation engaged in illegal

recruitment may be held liable as principal, together with his
employer, if it is shown that he actively and consciously participated in
illegal recruitment.9 Appellant actively took part in the illegal
recruitment of private complainants. Rogelio Legaspi testified that
after introducing herself as the General Manager of ATTC, appellant
persuaded him to apply as a technician in Singapore and assured him
that there was a job market therefor. In addition to the placement fee
of P35,000.00 which he paid to accused Bernadette Miranda, he also
handed the amount of P10,000.00 to appellant who, in turn, issued
him a receipt for the total amount of P45,000.00. Upon the other
hand, Soledad Atle and Luz Minkay, who applied as factory workers in
Hongkong through co-accused, Emily Salagonos, declared that it was
appellant who briefed them on the requirements for the processing of
their application, and assured them and Dennis Dimaano of immediate
deployment for jobs abroad. For her part, Evelyn Estacio testified that
aside from the placement fee of P40,000.00 that she paid to co-
accused "Baby" Robles in connection with her purported overseas
employment, she also gave appellant P10,000.00 for which she was
issued a receipt for the amount of P5,000.00.

The totality of the evidence, thus, established that appellant acted as

an indispensable participant and effective collaborator of her co-
accused in the illegal recruitment of complainants. As aptly found by
the CA:

Without doubt, all the acts of appellant, consisting of

introducing herself to complainants as general manager of
ATTC, interviewing and entertaining them, briefing them on
the requirements for deployment and assuring them that
they could leave immediately if they paid the required
amounts, unerringly show unity of purpose with those of
her co-accused in their scheme to defraud private
complainants through false promises of jobs abroad. There
being conspiracy, appellant shall be equally liable for the
acts of her co-accused even if she herself did not
personally reap the fruits of their execution. We quote with
approval the trial court's findings on the matter:

"xxx It is clear that said accused conspired with

her co-accused Rosemarie "Baby" Robles,
Bernadette M. Miranda, Nenita Catacotan, and
Jojo Resco in convincing complainants xxx to
apply for overseas jobs and giving
complainants Soledad Atle, Luz Minkay and
Dennis Dimaano guarantee that they would be
hired as factory workers in Hongkong,
 complainant Rogelio Legaspi, as Technician in
Singapore and Evelyn Estacio as quality
controller in a factory in Hongkong, despite the
fact that the accused was not licensed to do so.

It should be noted that all the accused were

connected with the Alternative Travel and
Tours Corporation (ATTC). Accused Beth
Temporada introduced herself as ATTC's
General Manager. Saod accused was also the
one who received the P10,000.00 given by
complainant Rogelio Legaspi, Jr. and the
P10,000.00 given by complainant Evelyn
Estacio as payment for their visa and plane
ticket, respectively."10

Consequently, the defense of appellant that she was not aware of the
illegal nature of the activities of her co-accused cannot be sustained.
Besides, even assuming arguendo that appellant was indeed unaware
of the illegal nature of said activities, the same is hardly a defense in
the prosecution for illegal recruitment. Under The Migrant Workers
and Overseas Filipinos Act of 1995, a special law, the crime of illegal
recruitment in large scale is malum prohibitum and not malum in se.11
Thus, the criminal intent of the accused is not necessary and the fact
alone that the accused violated the law warrants her conviction.12

In the instant case, we find no reason to depart from the rule that
findings of fact of the trial court on the credibility of witnesses and
their testimonies are generally accorded great respect by an appellate
court. The assessment of credibility of witnesses is a matter best left
to the trial court because it is in the position to observe that elusive
and incommunicable evidence of the witnesses' deportment on the
stand while testifying, which opportunity is denied to the appellate
courts.13 Further, there is no showing of any ill-motive on the part of
the prosecution witnesses in testifying against appellant. Absent such
improper motive, the presumption is that they were not so actuated
and their testimony is entitled to full weight and credit.

Section 7(b) of R.A. No. 8042 prescribes the penalty of life

imprisonment and a fine of not less than P500,000.00 nor more than
P1,000,000.00 for the crime of illegal recruitment in large scale or by a
syndicate. The trial court, therefore, properly meted the penalty of life
imprisonment and a fine of P500,000.00 on the appellant.

Anent the conviction of appellant for five (5) counts ofestafa, we,
likewise, affirm the same. Well-settled is the rule that a person
convicted for illegal recruitment under the Labor Code may, for the
same acts, be separately convicted for estafa under Article 315, par.
2(a) of the RPC. 14 The elements of estafa are: (1) the accused
defrauded another by abuse of confidence or by means of deceit; and
(2) the offended party or a third party suffered damage or prejudice
capable of pecuniary estimation.15 The same evidence proving
appellant's criminal liability for illegal recruitment also established her
liability for estafa. As previously discussed, appellant together with her
co-accused defrauded complainants into believing that they had the
authority and capability to send complainants for overseas
employment. Because of these assurances, complainants parted with
their hard-earned money in exchange for the promise of future work
abroad. However, the promised overseas employment never
materialized and neither were the complainants able to recover their
money.

While we affirm the conviction for the five (5) counts ofestafa, we find,
however, that the CA erroneously computed the indeterminate
penalties therefor. The CA deviated from the doctrine laid down in
People v. Gabres;16 hence its decision should be reversed with
respect to the indeterminate penalties it imposed. The reversal of the
appellate court's Decision on this point does not, however, wholly
reinstate the indeterminate penalties imposed by the trial court
because the maximum terms, as determined by the latter, were
erroneously computed and must necessarily be rectified.

The prescribed penalty for estafa under Article 315, par. 2(d) of the
RPC, when the amount defrauded exceeds P22,000.00, is prisión
correccional maximum to prisión mayor minimum. The minimum term
is taken from the penalty next lower or anywhere within prisión
correccional minimum and medium (i.e., from 6 months and 1 day to 4
years and 2 months). Consequently, the RTC correctly fixed the
minimum term for the five estafa cases at 4 years and 2 months of
prisión correccional since this is within the range of prisión
correccional minimum and medium.

On the other hand, the maximum term is taken from the prescribed
penalty of prisión correccional maximum to prisión mayor minimum in
its maximum period, adding 1 year of imprisonment for every
P10,000.00 in excess of P22,000.00, provided that the total penalty
shall not exceed 20 years. However, the maximum period of the
prescribed penalty of prisión correccional maximum to prisión mayor
minimum is not prisión mayor minimum as apparently assumed by the
RTC. To compute the maximum period of the prescribed penalty,
prisión correccional maximum to prisión mayor minimum should be
divided into three equal portions of time each of which portion shall be
deemed to form one period in accordance with Article 65 17 of the
RPC. Following this procedure, the maximum period of prisión
correccional maximum to prisión mayor minimum is from 6 years, 8
months and 21 days to 8 years.18 The incremental penalty, when
proper, shall thus be added to anywhere from 6 years, 8 months and
21 days to 8 years, at the discretion of the court.19

In computing the incremental penalty, the amount defrauded shall be

subtracted by P22,000.00, and the difference shall be divided by
P10,000.00. Any fraction of a year shall be discarded as was done
starting with the case of People v. Pabalan20 in consonance with the
settled rule that penal laws shall be construed liberally in favor of the
accused. The doctrine enunciated in People v. Benemerito21 insofar
as the fraction of a year was utilized in computing the total
incremental penalty should, thus, be modified. In accordance with the
above procedure, the maximum term of the indeterminate sentences
imposed by the RTC should be as follows:

In Criminal Case No. 02-208372, where the amount defrauded was

P57,600.00, the RTC sentenced the accused to an indeterminate
penalty of 4 years and 2 months of prisión correccional as minimum,
to 9 years and 1 day of prisión mayor as maximum. Since the amount
defrauded exceeds P22,000.00 by P35,600.00, 3 years shall be
added to the maximum period of the prescribed penalty (or added to
anywhere from 6 years, 8 months and 21 days to 8 years, at the
discretion of the court). The lowest maximum term, therefore, that can
be validly imposed is 9 years, 8 months and 21 days of prisión mayor,
and not 9 years and 1 day of prisión mayor.

In Criminal Case Nos. 02-208373, 02-208375, and 02-208376, where

the amounts defrauded were P66,520.00, P69,520.00, and
P69,520.00, respectively, the accused was sentenced to an
indeterminate penalty of 4 years and 2 months of prisión correccional
as minimum, to 10 years and 1 day ofprisión mayor as maximum for
each of the aforesaid three estafa cases. Since the amounts
defrauded exceed P22,000.00 by P44,520.00, P47,520.00, and
P47,520.00, respectively, 4 years shall be added to the maximum
period of the prescribed penalty (or added to anywhere from 6 years,
8 months and 21 days to 8 years, at the discretion of the court). The
lowest maximum term, therefore, that can be validly imposed is 10
years, 8 months and 21 days of prisión mayor, and not 10 years and 1
day of prisión mayor.

Finally, in Criminal Case No. 02-208374, where the amount defrauded

was P88,520.00, the accused was sentenced to an indeterminate
penalty of 4 years and 2 months of prisión correccional as minimum,
to 11 years and 1 day of prisión mayor as maximum. Since the
amount defrauded exceeds P22,000.00 by P66,520.00, 6 years shall
be added to the maximum period of the prescribed penalty (or added
to anywhere from 6 years, 8 months and 21 days to 8 years, at the
discretion of the court). The lowest maximum term, therefore, that can
be validly imposed is 12 years, 8 months and 21 days of reclusión
temporal, and not 11 years and 1 day of prisión mayor.

Response to the dissent.

In the computation of the indeterminate sentence forestafa under

Article 315, par. 2(a) of the Revised Penal Code (RPC), the Court has
consistently followed the doctrine espoused in Pabalan and more
fully explained in Gabres. The dissent argues that Gabres should be
reexamined and abandoned.

We sustain Gabres.

I.

The formula proposed in the Dissenting Opinion of Mr. Justice Ruben

T. Reyes, i.e., the maximum term shall first be computed by applying
the incremental penalty rule, and thereafter the minimum term shall be
determined by descending one degree down the scale of penalties
from the maximum term, is a novel but erroneous interpretation of the
ISL in relation to Article 315, par. 2(a) of the RPC. Under this
interpretation, it is not clear how the maximum and minimum terms
shall be computed. Moreover, the legal justification therefor is not
clear because the meaning of the terms "penalty," "prescribed
penalty," "penalty actually imposed," "minimum term," "maximum
term," "penalty next lower in degree," and "one degree down the scale
of penalties" are not properly set out and are, at times, used
interchangeably, loosely and erroneously.

For purposes of this discussion, it is necessary to first clarify the

meaning of certain terms in the sense that they will be used from here
on. Later, these terms shall be aligned to what the dissent appears to
be proposing in order to clearly address the points raised by the
dissent.

The RPC provides for an initial penalty as a general prescription for

the felonies defined therein which consists of a range of period of
time. This is what is referred to as the "prescribed penalty." For
instance, under Article 249 22 of the RPC, the prescribed penalty for
homicide is reclusión temporal which ranges from 12 years and 1 day
to 20 years of imprisonment. Further, the Code provides for attending
or modifying circumstances which when present in the commission of
a felony affects the computation of the penalty to be imposed on a
convict. This penalty, as thus modified, is referred to as the
"imposable penalty." In the case of homicide which is committed with
one ordinary aggravating circumstance and no mitigating
circumstances, the imposable penalty under the RPC shall be the
prescribed penalty in its maximum period. From this imposable
penalty, the court chooses a single fixed penalty (also called a straight
penalty) which is the "penalty actually imposed" on a convict, i.e.,
the prison term he has to serve.

Concretely, in U.S. v. Saadlucap,23 a pre-ISL case, the accused was

found guilty of homicide with a prescribed penalty of reclusión
temporal. Since there was one ordinary aggravating circumstance and
no mitigating circumstances in this case, the imposable penalty is
reclusión temporal in its maximum period, i.e., from 17 years, 4
months and 1 day to 20 years. The court then had the discretion to
impose any prison term provided it is within said period, so that the
penalty actually imposed on the accused was set at 17 years, 4
months and 1 day of reclusión temporal,24 which is a single fixed
penalty, with no minimum or maximum term.

With the passage of the ISL, the law created a prison term which
consists of a minimum and maximum term called the indeterminate
sentence.25 Section 1 of the ISL provides –

SECTION 1. Hereafter, in imposing a prison sentence for

an offense punished by the Revised Penal Code, or its
amendments, the court shall sentence the accused to an
indeterminate sentence the maximum term of which shall
be that which, in view of the attending circumstances,
could be properly imposed under the rules of said Code,
and the minimum which shall be within the range of the
penalty next lower to that prescribed by the Code for the
offense; x x x.

Thus, the maximum term is that which, in view of the attending

circumstances, could be properly imposed under the RPC. In other
words, the penalty actually imposed under the pre-ISL regime became
the maximum term under the ISL regime. Upon the other hand, the
minimum term shall be within the range of the penalty next lower to
the prescribed penalty. To illustrate, if the case of Saadlucap was
decided under the ISL regime, then the maximum term would be 17
years, 4 months and 1 day of reclusión temporal and the minimum
term could be anywhere within the range of prisión mayor (6 years
and 1 day to 12 years) which is the penalty next lower to reclusión
temporal. Consequently, an indeterminate sentence of 10 years of
prisión mayor as minimum to 17 years, 4 months and 1 day of
reclusión temporal as maximum could have possibly been imposed.

If we use the formula as proposed by the dissent,i.e., to compute the

minimum term based on the maximum term after the attending or
modifying circumstances are considered, the basis for computing the
minimum term, under this interpretation, is the imposable penalty26 as
hereinabove defined. This interpretation is at odds with Section 1 of
the ISL which clearly states that the minimum of the indeterminate
sentence shall be "within the range of the penalty next lower to that
prescribed by the Code for the offense." Consequently, the basis for
fixing the minimum term is the prescribed penalty, 27 and not the
imposable penalty.

In People v. Gonzales,28 the Court held that the minimum term must
be based on the penalty prescribed by the Code for the offense
"without regard to circumstances modifying criminal liability." 29 The
Gonzales' ruling that the minimum term must be based on the
prescribed penalty "without regard to circumstances modifying
criminal liability" is only a restatement of Section 1 of the ISL that the
minimum term shall be taken from within the range of the penalty next
lower to the prescribed penalty (and from nowhere else).30

Further, the dissent proceeds from the erroneous premise that its so-
called "regular formula" has generally been followed in applying the
ISL. To reiterate, according to the dissent, the "regular formula" is
accomplished by first determining the maximum term after considering
all the attending circumstances; thereafter, the minimum term is
arrived at by going one degree down the scale from the maximum
term. As previously discussed, this essentially means, using the terms
as earlier defined, that the minimum term shall be taken from the
penalty next lower to the imposable penalty (and not the prescribed
penalty.) In more concrete terms and using the previous example of
homicide with one ordinary aggravating circumstance, this would
mean that the minimum term for homicide will no longer be based on
reclusión temporal (i.e., the prescribed penalty for homicide) but
reclusión temporal in its maximum period (i.e., the imposable penalty
for homicide with one ordinary aggravating circumstance) so much so
that the minimum term shall be taken from reclusión temporal in its
medium period (and no longer from prisión mayor) because this is the
penalty next lower to reclusión temporal in its maximum period. The
penalty from which the minimum term is taken is, thus, significantly
increased. From this example, it is not difficult to discern why this
interpretation radically departs from how the ISL has generally
been applied by this Court. The dissent's "regular formula" is,
therefore, anything but regular.

In fine, the "regular formula" espoused by the dissent deviates from

the ISL and established jurisprudence and is, thus, tantamount to
judicial legislation.

II.

There is no absurdity or injustice in fixing or "stagnating" the minimum

term within the range of prisión correccional minimum and medium
(i.e., from 6 months and 1 day to 4 years and 2 months). Preliminarily,
it must be emphasized that the minimum term taken from the
aforementioned range of penalty need not be the same for every case
of estafa when the amount defrauded exceeds P12,000.00. InPeople
v. Ducosin,31 the Court provided some guidelines in imposing the
minimum term from the range of the penalty next lower to the
prescribed penalty:

We come now to determine the "minimum imprisonment

period" referred to in Act No. 4103. Section 1 of said Act
provides that this "minimum which shall not be less than
the minimum imprisonment period of the penalty next
 lower to that prescribed by said Code for the offense."32
We are here upon new ground. It is in determining the
"minimum" penalty that Act No. 4103 confers upon the
courts in the fixing of penalties the widest discretion that
the courts have ever had. The determination of the
"minimum" penalty presents two aspects: first, the more or
less mechanical determination of the extreme limits of the
minimum imprisonment period; and second, the broad
question of the factors and circumstances that should
guide the discretion of the court in fixing the minimum
penalty within the ascertained limits.

xxx

We come now to the second aspect of the determination

of the minimum penalty, namely, the considerations which
should guide the court in fixing the term or duration of the
minimum period of imprisonment. Keeping in mind the
basic purpose of the Indeterminate Sentence Law "to uplift
and redeem valuable human material, and prevent
unnecessary and excessive deprivation of personal liberty
and economic usefulness" (Message of the Governor-
General, Official Gazette No. 92, vol. XXXI, August 3,
1933), it is necessary to consider the criminal, first, as an
individual and, second, as a member of society. This
opens up an almost limitless field of investigation and
study which it is the duty of the court to explore in each
case as far as is humanly possible, with the end in view
that penalties shall not be standardized but fitted as far as
is possible to the individual, with due regard to the
imperative necessity of protecting the social order.

Considering the criminal as an individual, some of the

factors that should be considered are: (1) His age,
especially with reference to extreme youth or old age; (2)
his general health and physical condition; (3) his mentality,
heredity and personal habits; (4) his previous conduct,
environment and mode of life (and criminal record if any);
(5) his previous education, both intellectual and moral; (6)
his proclivities and aptitudes for usefulness or injury to
society; (7) his demeanor during trial and his attitude with
regard to the crime committed; (8) the manner and
circumstances in which the crime was committed; (9) the
gravity of the offense (note that section 2 of Act No. 4103
excepts certain grave crimes – this should be kept in mind
in assessing the minimum penalties for analogous crimes).

In considering the criminal as a member of society, his

relationship, first, toward his dependents, family and
associates and their relationship with him, and second, his
relationship towards society at large and the State are
important factors. The State is concerned not only in the
imperative necessity of protecting the social organization
against the criminal acts of destructive individuals but also
in redeeming the individual for economic usefulness and
other social ends. In a word, the Indeterminate Sentence
Law aims to individualize the administration of our criminal
law to a degree not heretofore known in these Islands.
With the foregoing principles in mind as guides, the courts
can give full effect to the beneficent intention of the
Legislature.33

Admittedly, it is possible that the court, upon application of the

guidelines in Ducosin, will impose the same minimum term to one who
commits an estafa involving P13,000.00 and another involving P130
million. In fact, to a lesser degree, this is what happened in the instant
case where the trial court sentenced the accused to the same
minimum term of 4 years and 2 months of prisión correccional in
Criminal Case Nos. 02-208372, 02-208373, 02-208375, 02-208376,
and 02-208374 where the amounts defrauded were P57,600.00,
P66,520.00, P69,520.00, P69,520.00 and P88,520.00, respectively.
However, there is no absurdity and injustice for two reasons.

One, while it is possible that the minimum term imposed by a court

would be the same, the maximum term would be greater for the
convict who committed estafa involving P130 million (which would be
20 years of reclusion temporal) than the convict who swindled
P13,000.00 (which could be anywhere from prisión correccional
maximum to prisión mayor minimum or from 4 years, 2 months and 1
day to 8 years).34 Assuming that both convicts qualify for parole after
serving the same minimum term, the convict sentenced to a higher
maximum term would carry a greater "burden" with respect to the
length of parole surveillance which he may be placed under, and the
prison term to be served in case he violates his parole as provided for
in Sections 6 35 and 836 of the ISL. Under Section 6, the convict shall
be placed under a period of surveillance equivalent to the remaining
portion of the maximum sentence imposed upon him or until final
release and discharge by the Board of Pardon and Paroles. Further,
the convict with the higher maximum term would have to serve a
longer period upon his re-commitment in prison in case he violates his
parole because he would have to serve the remaining portion of the
maximum term, unless the Board of Pardon and Paroles shall, in its
discretion, grant a new parole to the said convict as provided for in
Section 8.

Although the differences in treatment are in the nature of potential

liabilities, to this limited extent, the ISL still preserves the greater
degree of punishment in the RPC for a convict who commits estafa
involving a greater amount as compared to one who commits estafa
involving a lesser amount. Whether these differences in treatment
are sufficient in substance and gravity involves a question of
wisdom and expediency of the ISL that this Court cannot delve
into.

Two, the rule which provides that the minimum term is taken from the
range of the penalty next lower to the prescribed penalty is, likewise,
applicable to other offenses punishable under the RPC. For instance,
the minimum term for an accused guilty of homicide with one generic
mitigating circumstance vis - à-vis an accused guilty of homicide with
three ordinary aggravating circumstances would both be taken from
prisión mayor – the penalty next lower to eclusion temporal. Evidently,
the convict guilty of homicide with three ordinary aggravating
circumstances committed a more perverse form of the felony. Yet it is
possible that the court, after applying the guidelines in Ducosin, will
impose upon the latter the same minimum term as the accused guilty
of homicide with one generic mitigating circumstance. This reasoning
can be applied mutatis mutandis to most of the other offenses
punishable under the RPC. Should we then conclude that the ISL
creates absurd results for these offenses as well? cra lawlibrary

In fine, what is perceived as absurd and unjust is actually theintent

of the legislature to be beneficial to the convict in order to "uplift and
redeem valuable human material, and prevent unnecessary and
excessive deprivation of personal liberty and economic usefulness."37
By the legislature's deliberate design, the range of penalty from which
the minimum term is taken remains fixed and only the range of penalty
from which the maximum term is taken changes depending on the
number and nature of the attending circumstances. Again, the reason
why the legislature elected this mode of beneficence to a convict
revolves on questions of wisdom and expediency which this Court has
no power to review. The balancing of the State's interests in
deterrence and retributive justice vis - à-vis reformation and
reintegration of convicts to society through penal laws belongs to the
exclusive domain of the legislature.

III.

People v. Romero,38 De Carlos v. Court of Appeals,39 Salazar v.

People,40 People v. Dinglasan41 and, by analogy, People v. Dela
Cruz42 do not support the formula being proposed by the dissent.

The instant case involves a violation of Article 315, par. 2(a) of the
RPC.43 The penalty for said violation is–

ARTICLE 315. Swindling (Estafa). – Any person who shall

defraud another by any of the means mentioned
hereinbelow shall be punished by:

1st. The penalty of prisión correccional in its maximum

period to prisión mayor in its minimum period, if the
 amount of the fraud is over 12,000 pesos but does not
exceed 22,000 pesos, and if such amount exceeds the
latter sum, the penalty provided in this paragraph shall be
imposed in its maximum period, adding one year for each
additional 10,000 pesos; but the total penalty which may
be imposed shall not exceed twenty years. In such cases,
and in connection with the accessory penalties which may
be imposed and for the purpose of the other provisions of
this Code, the penalty shall be termed prisión mayor or
reclusión temporal, as the case may be. x x x

In contrast, Romero, De Carlos, and Salazar involved violations of

Article 315 of the RPC as amended by Presidential Decree (P.D.) No.
1689 44 because: (1) the funds defrauded were contributed by
stockholders or solicited by corporations/associations from the
general public, (2) the amount defrauded was greater than
P100,000.00, and (3) the estafa was not committed by a syndicate.
Section 1 of P.D. No. 1689 provides–

Sec. 1. Any person or persons who shall commit estafa or

other forms of swindling as defined in Article 315 and 316
of the Revised Penal Code, as amended, shall be
punished by life imprisonment to death if the swindling
(estafa) is committed by a syndicate consisting of five or
more persons formed with the intention of carrying out the
unlawful or illegal act, transaction, enterprise or scheme,
and the defraudation results in the misappropriation of
money contributed by stockholders, or members of rural
banks, cooperative, "samahang nayon(s)", or farmers
association, or of funds solicited by
corporations/associations from the general public.

When not committed by a syndicate as above defined,

the penalty imposable shall be reclusión temporal to
reclusión perpetua if the amount of the fraud exceeds
100,000 pesos. (Emphasis supplied) cralawlibrary

Since the prescribed penalty is reclusión temporal to reclusión

perpetua, the minimum terms were taken from prisión mayor, which is
the penalty next lower to the prescribed penalty. 45 As can be seen,
these cases involved a different penalty structure that does not make
use of the incremental penalty rule due to the amendatory law. Thus,
the comparison of these cases with Gabres is improper.

Meanwhile, in Dinglasan, the felony committed was estafa through

bouncing checks which is punishable under Article 315 par. 2(d) of the
RPC as amended by Republic Act (RA) No. 488546 –

Sec. 1. Section Two, Paragraph (d), Article Three hundred

fifteen of Act Numbered Thirty-eight hundred and fifteen is
hereby amended to read as follows:

"Sec. 2. By means of any of the following false pretenses

or fraudulent acts executed prior to or simultaneously with
the commission of the fraud:

"(d) By postdating a check, or issuing a check

in payment of an obligation when the offender
had no funds in the bank, or his funds
deposited therein were not sufficient to cover
the amount of the check. The failure of the
drawer of the check to deposit the amount
necessary to cover his check within three (3)
days from receipt of notice from the bank
and/or the payee or holder that said check has
been dishonored for lack or insufficiency of
funds shall be prima facie evidence of deceit
constituting false pretense or fraudulent act."

and P.D. No. 81847 –

Sec. 1. Any person who shall defraud another by means of false

pretenses or fraudulent acts as defined in paragraph 2(d) of Article
315 of the Revised Penal Code, as amended by Republic Act No.
4885, shall be punished by:
 1st. The penalty of reclusión temporal if the amount of
the fraud is over 12,000 pesos but not exceed 22,000
pesos, and if such amount exceeds the latter sum, the
penalty provided in this paragraph shall be imposed in its
maximum period, adding one year for each additional
10,000 pesos but the total penalty which may be imposed
shall in no case exceed thirty years. In such cases, and in
connection with the accessory penalties which may be
imposed under the Revised Penal Code, the penalty shall
be termed reclusión perpetua; x x x (Emphasis supplied) cralawlibrary

Here, the prescribed penalty of prisión correccional maximum to

prisión mayor minimum was increased to reclusión temporal by the
amendatory law. Consequently, the penalty next lower to reclusión
temporal is prisión mayor from which the minimum term was taken.
This is the reason for the higher minimum term in this case as
compared to Gabres. In fact, Dinglasan is consistent with Gabres–

Since the face value of Check No. 029021, for which

appellant is criminally liable for estafa, exceeds P22,000,
the penalty abovecited must be "imposed in its maximum
period, adding 1 year for each additional P10,000."
Pursuant to People v. Hernando, G.R. No. 125214, Oct.
28, 1999, an indeterminate sentence shall be imposed on
the accused, computed favorably to him. In this case, the
indeterminate sentence should be computed based on the
maximum period of reclusión temporal as maximum, which
is from 17 years, 4 months, and 1 day to 20 years. The
minimum period of the sentence should be within the
penalty next lower in degree as provided in the
Revised Penal Code, i.e., prisión mayor, which is from
6 years and 1 day to 12 years imprisonment.
Considering that the excess of the fraud committed,
counting from the base of P22,000, is only P4,400, which
is less than the P10,000 stated in P.D. 818, there is no
need to add one year to the maximum penalty
abovecited.48 (Emphasis supplied) cralawlibrary

As in Gabres, the penalty next lower (i.e., prisión mayor) was

determined without considering in the meantime the effect of the
amount defrauded in excess of P22,000.00 on the prescribed penalty
(i.e., reclusión temporal).

Finally, Dela Cruz involved a case for qualified theft. The prescribed
penalty for qualified theft is two degrees higher than simple theft.
Incidentally, the penalty structure for simple theft 49 and estafa is
similar in that both felonies (1) requires that the prescribed penalty be
imposed in its maximum period when the value of the thing stolen or
the amount defrauded, as the case may be, exceeds P22,000.00, and
(2) provides for an incremental penalty of 1 year imprisonment for
every P10,000.00 in excess of P22,000.00. It should be pointed out,
however, that the prescribed penalty for simple theft is prisión mayor
minimum and medium while in estafa it is lower at prisión correccional
maximum to prisión mayor minimum.

Being two degrees higher, the prescribed penalty for qualified theft is,
thus, reclusión temporal medium and maximum, while the minimum
term is taken from the range of prisión mayor maximum to reclusión
temporal minimum, which is the penalty next lower toreclusión
temporal medium and maximum. The penalty next lower to the
prescribed penalty is determined without first considering the amount
stolen in excess of P22,000.00 consistent with Gabres. In fact, Dela
Cruz expressly cites Gabres–

Applying the Indeterminate Sentence Law, the minimum of

the indeterminate penalty shall be anywhere within the
range of the penalty next lower in degree to that
prescribed for the offense, without first considering any
modifying circumstance attendant to the commission
of the crime. Since the penalty prescribed by law is
reclusión temporal medium and maximum, the penalty
next lower would be prisión mayor in its maximum period
t o reclusión temporal in its minimum period. Thus, the
minimum of the indeterminate sentence shall be anywhere
within ten (10) years and one (1) day to fourteen (14)
 years and eight (8) months.

The maximum of the indeterminate penalty is that which,

taking into consideration the attending circumstances,
could be properly imposed under the Revised Penal Code.
Since the amount involved in the present case
exceeds P22,000.00, this should be taken as
analogous to modifying circumstances in the
imposition of the maximum term of the full
indeterminate sentence, not in the initial determination
of the indeterminate penalty. (citing Gabres) Thus, the
maximum term of the indeterminate penalty in this case is
the maximum period of reclusión temporal medium and
maximum, which ranges from eighteen (18) years, two (2)
months, and twenty one (21) days to twenty (20) years, as
computed pursuant to Article 65, in relation to Article 64 of
the Revised Penal Code.50 (Emphasis supplied) cralawlibrary

Clearly, none of these cases supports the Dissenting Opinion's

thesis that the minimum term should be computed based on the
maximum term. Quite the contrary, Dinglasan and Dela Cruz are
consistent with Gabres.

IV.

The argument that the incremental penalty rule should not be

considered as analogous to a modifying circumstance stems from the
erroneous interpretation that the "attending circumstances" mentioned
in Section 1 of the ISL are limited to those modifying circumstances
falling within the scope of Articles 13 and 14 of the RPC. Section 1 of
the ISL is again quoted below –

SECTION 1. Hereafter, in imposing a prison sentence for

an offense punished by the Revised Penal Code, or its
amendments, the court shall sentence the accused to an
indeterminate sentence the maximum term of which shall
be that which, in view of the attending circumstances,
could be properly imposed under the rules of said
Code, and the minimum which shall be within the range of
the penalty next lower to that prescribed by the Code for
the offense; x x x (Emphasis supplied) cralawlibrary

The plain terms of the ISL show that the legislature did not intend to
limit "attending circumstances" as referring to Articles 13 and 14 of the
RPC. If the legislature intended that the "attending circumstances"
under the ISL be limited to Articles 13 and 14, then it could have
simply so stated. The wording of the law clearly permits other
modifying circumstances outside of Articles 13 and 14 of the RPC to
be treated as "attending circumstances" for purposes of the
application of the ISL, such as quasi-recidivism under Article 160 51 of
the RPC. Under this provision, "any person who shall commit a felony
after having been convicted by final judgment, before beginning to
serve such sentence, or while serving the same, shall be punished by
the maximum period of the penalty prescribed by law for the new
felony." This circumstance has been interpreted by the Court as a
special aggravating circumstance where the penalty actually imposed
is taken from the prescribed penalty in its maximum period without
regard to any generic mitigating circumstances.52 Since quasi-
recidivism is considered as merely a special aggravating
circumstance, the penalty next lower in degree is computed based on
the prescribed penalty without first considering said special
aggravating circumstance as exemplified in People v. Manalo53 and
People v. Balictar.54

The question whether the incremental penalty rule is covered within

the letter and spirit of "attending circumstances" under the ISL was
answered in the affirmative by the Court in Gabres when it ruled
therein that the incremental penalty rule is analogous to a modifying
circumstance.

Article 315 of the RPC pertinently provides –

ARTICLE 315. Swindling (Estafa). – Any person who shall

defraud another by any of the means mentioned
hereinbelow shall be punished by:
 1st. The penalty of prisión correccional in its
maximum period to prisión mayor in its
minimum period, if the amount of the fraud is
over 12,000 pesos but does not exceed 22,000
pesos, and if such amount exceeds the latter
sum, the penalty provided in this paragraph
shall be imposed in its maximum period, adding
one year for each additional 10,000 pesos; but
the total penalty which may be imposed shall
not exceed twenty years. In such cases, and in
connection with the accessory penalties which
may be imposed and for the purpose of the
other provisions of this Code, the penalty shall
be termed prisión mayor o r reclusión temporal,
as the case may be. x x x

U n d e r Gabres, prisión correccional maximum to prisión mayor

minimum is the prescribed penalty55 for estafa when the amount
defrauded exceeds P22,000.00. An amount defrauded in excess of
P22,000.00 is effectively considered as a special aggravating
circumstance in the sense that the penalty actually imposed shall be
taken from the prescribed penalty in its maximum period without
regard to any generic mitigating circumstances. Consequently, the
penalty next lower in degree is still based on the prescribed penalty
without in the meantime considering the effect of the amount
defrauded in excess of P22,000.00.

What is unique, however, with the afore-quoted provision is that when

the amount defrauded is P32,000.00 or more, the prescribed penalty
is not only imposed in its maximum period but there is imposed an
incremental penalty of 1 year imprisonment for every P10,000.00 in
excess of P22,000.00, provided that the total penalty which may be
imposed shall not exceed 20 years. This incremental penalty rule is a
special rule applicable to estafa and theft. In the case of estafa, the
incremental penalty is added to the maximum period of the prescribed
penalty (or to anywhere from 6 years, 8 months and 21 days to 8
years) at the discretion of the court, in order to arrive at the penalty
actually imposed (i.e., the maximum term, within the context of the
ISL).

This unique characteristic of the incremental penalty rule does not

pose any obstacle to interpreting it as analogous to a modifying
circumstance, and, hence, falling within the letter and spirit of
"attending circumstances" for purposes of the application of the ISL.
Under the wording of the ISL, "attending circumstances" may be
reasonably interpreted as referring to such circumstances that are
applied in conjunction with certain rules in the Code in order to
determine the penalty to be actually imposed based on the prescribed
penalty of the Code for the offense. The incremental penalty rule
substantially meets this standard. The circumstance is the amount
defrauded in excess of P22,0000.00 and the incremental penalty rule
is utilized to fix the penalty actually imposed. At its core, the
incremental penalty rule is merely a mathematical formula for
computing the penalty to be actually imposed using the prescribed
penalty as starting point. Thus, it serves the same function of
determining the penalty actually imposed as the modifying
circumstances under Articles 13, 14, and 160 of the RPC, although
the manner by which the former accomplishes this function differs with
the latter. For this reason, the incremental penalty rule may be
considered as merely analogous to modifying circumstances. Besides,
in case of doubt as to whether the incremental penalty rule falls within
the scope of "attending circumstances" under the ISL, the doubt
should be resolved in favor of inclusion because this interpretation
is more favorable to the accused following the time-honored principle
that penal statutes are construed strictly against the State and
liberally in favor of the accused.56 Thus, even if the Dissenting
Opinion's interpretation is gratuitously conceded as plausible, as
between Gabres and the dissent's interpretation, Gabres should be
sustained since it is the interpretation more favorable to the accused.

V.

The claim that the maximum term should only be one degree away
from the minimum term does not make sense within the meaning
of "degrees" under the RPC because the minimum and maximum
terms consist of single fixed penalties. At any rate, the point
seems to be that the penalty from which the minimum term is taken
should only be one degree away from the penalty from which the
maximum term is taken.

As a general rule, the application of modifying circumstances, the

majority being generic mitigating and ordinary aggravating
circumstances, does not result to a maximum term fixed beyond the
prescribed penalty. At most, the maximum term is taken from the
prescribed penalty in its maximum period. Since the maximum term is
taken from the prescribed penalty and the minimum term is taken from
the next lower penalty, then, in this limited sense, the difference would
naturally be only one degree. Concretely, in the case of homicide with
one ordinary aggravating circumstance, the maximum term is taken
from reclusión temporal in its maximum period which is within the
prescribed penalty of reclusión temporal, while the minimum term is
taken from prisión mayor which is the penalty next lower to reclusión
temporal; hence, the one-degree difference observed by the dissent.

In comparison, under the incremental penalty rule, the maximum term

can exceed the prescribed penalty. Indeed, at its extreme, the
maximum term can be as high as 20 years of reclusión temporal while
the prescribed penalty remains at prisión correccional maximum to
prisión mayor minimum, hence, the penalty next lower to the
prescribed penalty from which the minimum term is taken remains at
anywhere within prisión correccional minimum and medium, or from 6
months and 1 day to 4 years and 2 months. In this sense, the
incremental penalty rule deviates from the afore-stated general rule.57

However, it is one thing to say that, generally, the penalty from which
the minimum term is taken is only one degree away from the penalty
from which the maximum term is taken, and completely another thing
to claim that the penalty from which the minimum term is taken
should only be one degree away from the penalty from which the
maximum term is taken.

The one-degree difference is merely the result of a general

observation from the application of generic mitigating and ordinary
aggravating circumstances in the RPC in relation to the ISL. Nowhere
does the ISL refer to the one-degree difference as an essential
requisite of an "attending circumstance." If the application of the
incremental penalty rule deviates from the one-degree difference, this
only means that the law itself has provided for an exception thereto.
Verily, the one-degree difference is a mere consequence of the
generic mitigating and ordinary aggravating circumstances created by
the legislature. The difficulty of the dissent with the deviation from its
so-called one-degree difference rule seems to lie with the inability to
view these "attending circumstances" as mere artifacts or creations of
the legislature. It does not make sense to argue that the legislature
cannot formulate "attending circumstances" that operate differently
than these generic mitigating and ordinary aggravating circumstances,
and that, expectedly, leads to a different result from the one-degree
difference–for it would be to say that the creator can only create one
specie of creatures. Further, it should be reasonably assumed that the
legislature was aware of these special circumstances, like the
incremental penalty rule or privileged mitigating circumstances, at the
time it enacted the ISL as well as the consequent effects of such
special circumstances on the application of said law. Thus, for as long
as the incremental penalty rule is consistent with the letter and spirit of
"attending circumstances" under the ISL, there is no obstacle to its
treatment as such.

VI.

Much has been said about the leniency, absurdity and unjustness of
the result under Gabres; the need to adjust the minimum term of the
indeterminate penalty to make it commensurate to the gravity of the
estafa committed; the deterrence effect of a stiffer imposition of
penalties; and a host of other similar reasons to justify the reversal of
Gabres. However, all these relate to policy considerations beyond the
wording of the ISL in relation to the RPC; considerations that if given
effect essentially seek to rewrite the law in order to conform to one
notion (out of an infinite number of such notions) of wisdom and
efficacy, and, ultimately, of justice and mercy.

This Court is not the proper forum for this sort of debate. The
Constitution forbids it, and the principle of separation of powers
abhors it. The Court applies the law as it finds it and not as how it
thinks the law should be. Not too long ago in the case of People v.
Veneracion,58 this Court spoke about the dangers of allowing one's
personal beliefs to interfere with the duty to uphold the Rule of Law
which, over a decade later, once again assumes much relevance in
this case:

Obedience to the rule of law forms the bedrock of our

system of justice. If judges, under the guise of religious or
political beliefs were allowed to roam unrestricted beyond
boundaries within which they are required by law to
exercise the duties of their office, the law becomes
meaningless. A government of laws, not of men excludes
the exercise of broad discretionary powers by those acting
under its authority. Under this system, judges are guided
by the Rule of Law, and ought "to protect and enforce it
without fear or favor," resist encroachments by
governments, political parties, or even the interference of
their own personal beliefs.59

VII.

Mr. Justice Adolfo S. Azcuna proposes an interpretation of the

incremental penalty rule based on the phrases "shall be termed
prisión mayor or reclusión temporal, as the case may be" and "for the
purpose of the other provisions of this Code" found in the last
sentence of said rule, viz:

ARTICLE 315. Swindling (Estafa). – Any person who shall

defraud another by any of the means mentioned
hereinbelow shall be punished by:

1st. The penalty of prisión correccional in its

maximum period to prisión mayor in its
minimum period, if the amount of the fraud is
over 12,000 pesos but does not exceed 22,000
pesos, and if such amount exceeds the latter
sum, the penalty provided in this paragraph
shall be imposed in its maximum period, adding
one year for each additional 10,000 pesos; but
the total penalty which may be imposed shall
not exceed twenty years. In such cases, and
in connection with the accessory penalties
which may be imposed and for the purpose
of the other provisions of this Code, the
penalty shall be termed prisión mayor or
reclusión temporal, as the case may be. x x x
(Emphasis supplied) cralawlibrary

While this interpretation is plausible, Gabres should still be sustained

because in construing penal statutes, as between two reasonable60
but contradictory constructions, the one more favorable to the
accused should be upheld, which in this case is Gabres. The reason
for this rule is elucidated in an eminent treatise on statutory
construction in this wise:

It is an ancient rule of statutory construction that penal

statutes should be strictly construed against the
government or parties seeking to enforce statutory
penalties and in favor of the persons on whom
penalties are sought to be imposed. This simply means
that words are given their ordinary meaning and that any
reasonable doubt about the meaning is decided in
favor of anyone subjected to a criminal statute. This
canon of interpretation has been accorded the status of a
constitutional rule under principles of due process, not
subject to abrogation by statute.

The rule that penal statutes should be strictly construed

has several justifications based on a concern for the rights
and freedoms of accused individuals. Strict construction
can assure fairness when courts understand it to mean
that penal statutes must give a clear and unequivocal
warning, in language people generally understand, about
 actions that would result in liability and the nature of
potential penalties. A number of courts have said:

'the rule that penal statutes are to be strictly

construed - is a fundamental principle which in
our judgment will never be altered. Why?
Because the lawmaking body owes the duty to
citizens and subjects of making unmistakably
clear those acts for the commission of which
the citizen may lose his life or liberty.
Therefore, all the canons of interpretation
which apply to civil statutes apply to criminal
statutes, and in addition there exists the canon
[of strict construction] '. The burden lies on the
lawmakers, and inasmuch as it is within their
power, it is their duty to relieve the situation of
all doubts.

xxx

Additionally, strict construction protects the individual

against arbitrary discretion by officials and judges. As one
judge noted: "the courts should be particularly careful that
the bulwarks of liberty are not overthrown, in order to
reach an offender who is, but perhaps ought not to be,
sheltered behind them."

But also, for a court to enforce a penalty where the

legislature has not clearly and unequivocally
prescribed it could result in judicial usurpation of the
legislative function. One court has noted that the reason
for the rule is "to guard against the creation, by judicial
construction, of criminal offenses not within the
contemplation of the legislature." Thus the rule requires
that before a person can be punished his case must be
plainly and unmistakably within the statute sought to be
applied. And, so, where a statute is open to more than one
interpretation, it is strictly construed against the state.
Courts further rationalize this application of the rule of strict
construction on the ground that it was not the defendant in
the criminal action who caused ambiguity in the statute.
Along these same lines, courts also assert that since the
state makes the laws, they should be most strongly
construed against it.61 (Emphasis supplied; citations
omitted) chanroblesvirtuallawlibrary

Thus, in one case, where the statute was ambiguous and permitted
two reasonable interpretations, the construction which would impose a
less severe penalty was adopted.62

WHEREFORE, the Decision of the Court of Appeals is MODIFIED

with respect to the indeterminate penalties imposed on appellant for
the five (5) counts of estafa, to wit:

(1) In Criminal Case No. 02-208372, the accused is

sentenced to an indeterminate penalty of 4 years and 2
months of prisión correccional as minimum, to 9 years, 8
months and 21 days of prisión mayor as maximum.

(2) In Criminal Case Nos. 02-208373, 02-208375, and 02-

208376, the accused is sentenced to an indeterminate
penalty of 4 years and 2 months of prisión correccional as
minimum, to 10 years, 8 months and 21 days of prisión
mayor as maximum for each of the aforesaid threeestafa
cases.

(3) In Criminal Case No. 02-208374, the accused is

sentenced to an indeterminate penalty of 4 years and 2
months of prisión correccional as minimum, to 12 years, 8
months and 21 days of reclusión temporal as maximum.

In all other respects, the Decision of the Court of Appeals is

AFFIRMED.

SO ORDERED.
Endnotes:

1 CA rollo, pp. 121-136. Penned by Associate Justice

Rebecca de Guia-Salvador, with Associate Justices
Amelita G. Tolentino and Aurora Santiago-Lagman,
concurring.

2 Penned by Hon. Reynaldo G. Ros.

3 CA rollo, pp. 121-124.

4 Id. at 125-26.
5 G.R. NOS. 147678-87, July 7, 2004, 433 SCRA 640.

6 CA rollo, p. 135.

7 People v. Gamboa, G.R. No. 135382, September 29,

2000, 341 SCRA 451, 458.

8 Exhibits "A," "L," and "L-1."

9 People
v. Cabais, G.R. No. 129070, March 16, 2001, 354
SCRA 553, 561.

10 CA rollo, pp. 9-10.

11 Supra note 7 at 462.

12 Id.

13 People v. Guambor, G.R. No. 152183, January 22,

2004, 420 SCRA 677, 683.
14 People v. Ballesteros, G.R. NOS. 116905-908, August
6, 2002, 386 SCRA 193, 212.

15 Id. at 213.

16 335 Phil. 242 (1997).

17 ARTICLE 65. Rule in Cases in Which the Penalty is Not

Composed of Three Periods. – In cases in which the
penalty prescribed by law is not composed of three
periods, the courts shall apply the rules contained in the
foregoing articles, dividing into three equal portions the
time included in the penalty prescribed, and forming one
period of each of the three portions.

18People v. Saley, G.R. No. 121179, July 2, 1998, 291

SCRA 715, 753-754.

19 Id. at 755.

20 331 Phil. 64 (1996).

21 332 Phil. 710, 730-731 (1996).

22 ARTICLE 249. Homicide. – Any person who, not falling

within the provisions of article 246 shall kill another without
the attendance of any of the circumstances enumerated in
the next preceding article, shall be deemed guilty of
homicide and be punished by reclusión temporal.

23 3 Phil. 437 (1904).

24 Id. at 440.

25 The penalty is considered "indeterminate" because after

the convict serves the minimum term, he or she may
become eligible for parole under the provisions of Act No.
4103, which leaves the period between the minimum and
maximum term indeterminate in the sense that he or she
may, under the conditions set out in said Act, be released
from serving said period in whole or in part. (People v.
Ducosin, 59 Phil. 109, 114 [1933])
26 In the other portions of the dissent though, there is also
the impression that the basis is the penalty actually
imposed as hereinabove defined. Whether it is the
imposable penalty or penalty actually imposed, the
dissent's interpretation contravenes the ISL because the
minimum term should be fixed based on the prescribed
penalty.

27See Aquino and Griño-Aquino, The Revised Penal

Code, Vol. 1, 1997 ed., pp. 772-773; Padilla, Criminal Law:
Revised Penal Code Annotated, 1988 ed., pp. 211-214.

28 73 Phil. 549 (1941).

29 Id. at 552.

30 The dissent cites several cases to establish that

Gonzales has not been followed in cases outside of estafa.
An examination of these cases reveals that this assertion
is inaccurate.

1. Sabang v. People, G.R. No. 168818, March

9, 2007, 518 SCRA 35; People v. Candaza,
G.R. No. 170474, June 16, 2006, 491 SCRA
280; People v. Concepcion, G.R. No. 169060,
February 6, 2007, 514 SCRA 660; People v.
Hermocilla, G.R. No. 175830, July 10, 2007,
527 SCRA 296; People v. Abulon, G.R. No.
174473, August 17, 2007, 530 SCRA 675.

Gonzales was applied in these cases.

2. People v. Miranda, G.R. No. 169078, March

10, 2006, 484 SCRA 555; Garces v. People,
G.R. No. 173858, July 17, 2007, 527 SCRA
827–belongs to the class of cases involving
accessories and accomplices as well as the
frustrated and attempted stages of a felony.

Strictly speaking, these cases do not deviate

from Gonzales. Here, the prescribed penalty for
the principal and consummated stage,
respectively, should be merely viewed as being
lowered by the proper number of degrees in
order to arrive at the prescribed penalties for
accomplices and accessories as well as the
frustrated and attempted stages of a felony. In
turn, from these prescribed penalties, the
minimum term is determined without
considering in the meantime the modifying
circumstances, as in Gonzales.

3. Garces v. People, G.R. No. 173858, July 17,

2007, 527 SCRA 827–belongs to the class of
cases involving privileged mitigating
circumstances.

These cases are, to a certain extent, an

exception to the rule enunciated in Gonzales.
Here, the prescribed penalty is first reduced by
the proper number of degrees due to the
existence of a privileged mitigating
circumstance. As thus reduced, the penalty
next lower in degree is determined from which
the minimum term is taken. To the extent that
the privileged mitigating circumstance, as a
modifying circumstance, is first applied to the
prescribed penalty before the penalty next
lower in degree is determined, these cases
deviate from Gonzales. However, this
 interpretation is based on the special nature of
a privileged mitigating circumstance as well as
the liberal construction of penal laws in favor of
the accused. If the privileged mitigating
circumstance is not first applied to the
prescribed penalty before determining the
penalty next lower in degree from which the
minimum term is taken, it may happen that the
maximum term of the indeterminate sentence
would be lower than the minimum term, or that
the minimum and maximum term would both be
taken from the same range of penalty–
absurdities that the law could not have
intended. These special considerations which
justified a deviation from Gonzales are not
present in the instant case. As will be shown
later, Gabres is a reasonable interpretation of
the ISL in relation to Article 315, par. 2(a) of the
RPC, and any contrary interpretation would be
unfavorable to the accused.

31 59 Phil. 109 (1933).

32 This wording of Act No. 4103 was later amended to the

current wording "minimum which shall be within the range
of the penalty next lower to that prescribed by the Code for
the offense" by Act No. 4225.
33 Supra note 31 at 116-118.

34 Similarly, in the instant case, the maximum term

imposed on the accused increased as the amount
defrauded increased in the various criminal cases filed
against her as a consequence of the incremental penalty
rule.

35 Sec. 6. Every prisoner released from confinement on

parole by virtue of this Act shall, at such times and in such
manner as may be required by the conditions of his parole,
as may be designated by the said Board for such purpose,
report personally to such government officials or other
parole officers hereafter appointed by the Board of
Indeterminate Sentence for a period of surveillance
equivalent to the remaining portion of the maximum
sentence imposed upon him or until final release and
discharge by the Board of Indeterminate Sentence as
herein provided. The officials so designated shall keep
such records and make such reports and perform such
other duties hereunder as may be required by said Board.
The limits of residence of such paroled prisoner during his
parole may be fixed and from time to time changed by the
said Board in its discretion. If during the period of
surveillance such paroled prisoner shall show himself to be
a law-abiding citizen and shall not violate any of the laws
of the Philippine Islands, the Board of Indeterminate
Sentence may issue a final certificate of release in his
favor, which shall entitle him to final release and discharge.

36 Sec. 8. Whenever any prisoner released on parole by

virtue of this Act shall, during the period of surveillance,
violate any of the conditions of his parole, the Board of
Indeterminate Sentence may issue an order for his re-
arrest which may be served in any part of the Philippine
Islands by any police officer. In such case the prisoner so
re-arrested shall serve the remaining unexpired portion of
the maximum sentence for which he was originally
committed to prison, unless the Board of Indeterminate
Sentence shall, in its discretion, grant a new parole to the
said prisoner.

37 Supra note 31 at 117.

38 G.R. No. 112985, April 21, 1999, 306 SCRA 90.

39 G.R. No. 103065, August 16, 1999, 312 SCRA 397.
40 G.R. No. 149472, October 15, 2002, 391 SCRA 162.

41 G.R. No. 133645, September 17, 2002, 389 SCRA 71.

42 383 Phil. 213 (2000).

43 Estafa committed by using fictitious name, or falsely

pretending to possess power, influence, qualifications,
property, credit, agency, business or imaginary
transactions, or by means of other similar deceits.

44 Effective April 6, 1980.

45 See Article 61 of the RPC.

46 Effective June 17, 1967.

47 Effective October 22, 1975.

48 Supra note 41 at 80.

49ARTICLE 309. Penalties. – Any person guilty of theft
shall be punished by:

1. The penalty of prisión mayor in its minimum

and medium periods, if the value of the thing
stolen is more than 12,000 pesos but does not
exceed 22,000 pesos; but if the value of the
thing stolen exceeds the latter amount, the
penalty shall be the maximum period of the one
prescribed in this paragraph, and one year for
each additional ten thousand pesos, but the
total of the penalty which may be imposed shall
not exceed twenty years. In such cases, and in
connection with the accessory penalties which
may be imposed and for the purpose of the
other provisions of this Code, the penalty shall
be termed prisión mayor or reclusión temporal,
as the case may be. x x x

50 Supra note 42 at 227-228.

51 ARTICLE 160. Commission of Another Crime During
Service of Penalty Imposed for Another Previous Offense
– Penalty. – Besides the provisions of rule 5 of article 62,
any person who shall commit a felony after having been
convicted by final judgment, before beginning to serve
such sentence, or while serving the same, shall be
punished by the maximum period of the penalty prescribed
by law for the new felony.

Any convict of the class referred to in this article, who is

not a habitual criminal, shall be pardoned at the age of
seventy years if he shall have already served out his
original sentence, or when he shall complete it after
reaching said age, unless by reason of his conduct or
other circumstances he shall not be worthy of such
clemency.

52 See People v. Perete, 111 Phil. 943, 947 (1961).

53G.R. No. L-55177, February 27, 1987, 148 SCRA 98,

110.
54 G.R. No. L-29994, July 20, 1979, 91 SCRA 500, 511.

The dissent argues that the use of quasi-recidivism as an

example of an "attending circumstance" which is outside
the scope of Article 14 of the RPC is inappropriate
because quasi-recidivism is sui generis. The argument is
off-tangent. The point is simply that quasi-recidivism is not
found under Article 14 of the RPC yet it is treated as an
 "attending circumstance" for purposes of the application of
the ISL in relation to the RPC. Hence, there are "attending
circumstances" outside the scope of Articles 13 and 14 of
the RPC. For the same reason, the incremental penalty
rule is a special rule outside of Article 14 which, as will be
discussed later on, serves the same function as modifying
circumstances under Articles 13 and 14 of the RPC. See
also Reyes, L.B., The Revised Penal Code, 14th ed., 1998,
p. 766.

55 The common thread in the RPC is to fix the prescribed

penalty as the starting point for determining the prison
sentence to be finally imposed. From the prescribed
penalty, the attending circumstances are then considered
in order to finally fix the penalty actually imposed. Further,
the designation of a prescribed penalty is made in
individual articles, or prescribed penalties are individually
designated in separate paragraphs within a single article.
Under Article 315, the penalty for estafa when the amount
defrauded is over P12,000.00 but does not exceed
P22,000.00 and when such amount exceeds P22,000.00
is lumped within the same paragraph. Thus, the penalty of
prisión correccional maximum to prisión mayor minimum
may be reasonably considered as the starting point for the
computation of the penalty actually imposed, and hence,
the prescribed penalty when the amount defrauded
exceeds P22,000.00. As will be discussed shortly, the
amount defrauded in excess of P22,000.00 may then be
treated as a special aggravating circumstance and the
incremental penalty as analogous to a modifying
circumstance in order to arrive at the penalty actually
imposed consistent with the letter and spirit of the ISL in
relation to the RPC.

56 People v. Ladjaalam, 395 Phil. 1, 35 (2000).

57 Cases involving privileged mitigating circumstances

would, likewise, deviate from this general rule since the
maximum term would be taken from a penalty lower than
the prescribed penalty. See note 13.

58G.R. NOS. 119987-88, October 12, 1995, 249 SCRA

244.

59 Id. at 251.

60 The aforesaid phrases are broad enough to justify Mr.

Justice Azcuna's interpretation, however, they are vague
enough not to exclude the interpretation under Gabres.
The said phrases may be so construed without being
inconsistent with Gabres. (See Articles 90 and 92 of the
RPC)

61 3 Sutherland Statutory Construction - 59:3 (6th ed.)

62Id. citing Buzzard v. Commonwealth, 134 Va. 641, 114

S.E. 664 (1992).

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